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In re Matasia R.

Court of Appeals of Tennessee, Knoxville

August 30, 2019

In Re MATASIA R., et al.[1]

          Assigned on Briefs February 1, 2019

          Appeal from the Juvenile Court for Hamblen County No. 14870J Janice Hope Snider, Judge

         This action involves the termination of a father's parental rights to his minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory ground of abandonment by an incarcerated parent. The court further found that termination was in the best interest of the children. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          Russell S. Veldman, Chuckey, Tennessee, for the appellant, Robert R.

          Herbert H. Slatery, III, Attorney General & Reporter, and Erin A. Shackelford, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

          John W. McClarty, J., delivered the opinion of the Court, in which Richard H. Dinkins and Arnold B. Goldin, JJ., joined.



         I. BACKGROUND

         Matasia R. and KyJuan T. (collectively "the Children") were born to Cissy S. ("Mother") in November 2006 and October 2010. Robert R. ("Father") has been adjudicated as the legal father of the Children, and he has evidenced this fact by his care and attention to them. In 2007 and again in 2010, Father was awarded legal custody of Matasia as a result of Mother's history of drug abuse and child neglect. KyJuan was placed into the custody of the Tennessee Department of Children's Services ("DCS") following his birth as a result of Mother's drug use while pregnant. He was returned to her on January 11, 2012, after Mother's completion of a permanency plan and a trial home placement.

         Matasia remained with Father, while Mother's visitation rights were restricted to supervised visitation by court order. Father maintained a nice home and lifestyle for Matasia until he engaged in conduct that led to his arrest in February 2014 for theft. He later pled guilty and was incarcerated on November 2015 for theft and the violation of a prior community corrections sentence.[2] Prior to his incarceration, he entrusted the care of Matasia to his friend, Terra R. Father later authorized Mother to engage in unsupervised visitation. However, Mother then refused to return Matasia to Terra R. at the appointed time. Matasia remained with Mother until February 2016, when the Children were removed due to allegations concerning Mother's drug abuse and Father's inability to care for them while incarcerated.

         The Children were adjudicated as dependent and neglected and placed in a foster home, where they have remained since that time. A permanency plan was created on March 1, 2016, and revised on September 1, 2016. Both plans were ratified by the trial court. Father was tasked with a number of requirements that were impossible to complete while incarcerated. Further, DCS was unable to assist him in completing said requirements because of the distance between the prison and DCS's caseworker assigned to represent the Children.

         DCS filed a petition to terminate Father's parental rights on May 2, 2017, based upon the statutory grounds of abandonment; substantial noncompliance with the permanency plan; the persistence of conditions which led to removal; and Father's sentence of ten or more years.[3] The case proceeded to a hearing on November 20, 2017, at which DCS withdrew its request for termination based upon Father's sentence.

         Father testified that he was charged with theft after he worked on his aunt's car. He explained that he put a new motor in her van at her request but that he put the old motor back in when she refused to pay him for his work. She retrieved the van and reported him for theft. He was charged with theft because the police could not find the van. He stated that he was scheduled for a parole hearing on March 23, 2018. He believed that he will have completed his sentence by that time and will be released.

         Father stated that prior to his incarceration, he was granted 15 days to make arrangements for Matasia. He found a notary and relinquished custody to Terra R. during that time. He helped Matasia transition to her new home and then reported to jail as directed. He later allowed Matasia to visit Mother; however, he called the police and DCS when Mother refused to return Matasia. He claimed that the police refused to remove Matasia because she was with her biological mother. DCS also refused to take action, despite his frequent requests for assistance in removing Matasia from Mother. He then asked Mother's neighbor to report Mother for neglect and drug abuse. He claimed that the Children were finally removed by DCS as a result of the neighbor's allegations.

         Father identified a plethora of correspondence between himself and the Children. He stated that he spoke with them on a weekly basis, when possible. He also made them leather belts and purses to give to them as gifts. He expressed love for them and claimed that he cared for KyJuan in Mother's absence even though she technically had legal custody of him. He explained that Mother would disappear for months prior to his incarceration. He provided that he also reported Mother for her drug use while pregnant but that DCS failed to take action. He alleged that KyJuan was born with spina bifida as a result of Mother's drug use while pregnant.

         April Turner, the family case worker, testified that the Children last came into custody in February 2016 based upon allegations of Mother's drug abuse and Father's inability to care for them as a result of his incarceration. She advised Father of the Criteria and Procedures for Termination of his parental rights by telephone due to his incarceration. She explained that he has been incarcerated for the entire time the Children have been custody. She conceded that he was eligible for parole in March 2018 but claimed that his official release date was not until 2022.

         Ms. Turner testified that Father attempted to complete some permanency plan requirements and was able to maintain regular contact with the Children by telephone, despite his incarceration. She explained that the classes and workshops he attended while incarcerated would not fulfill the plan requirements because the classes were not certified through DCS. She acknowledged that she also could not facilitate other necessary services in compliance with the permanency plans due to Father's incarceration. She agreed that she was not even authorized to meet with Father at the prison due to travel restrictions placed upon her by DCS.

         Ms. Turner stated that she arranged a visit for the Children with Terra R., a family friend. She did not observe a bond between Terra and the Children. She claimed that Matasia advised her that she was not comfortable with Terra and did not know her well. She stated that the Children were placed in the same foster home and each had prior involvement with the same foster family during prior periods of ...

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